BOARD DATE:	  21 July 2009

		DOCKET NUMBER:  AR20090003104 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, award of the Combat Action Badge (CAB).

2.  The applicant states, in effect, that he should be awarded the CAB based on his engaging with the enemy while serving in Iraq.  He claims that sometime in April or early May of 2007 he was told he was being recommended for the CAB for an incident that occurred in March and that he should provide a statement of what occurred.  He provided a statement indicating that while walking across from the Embassy annex on 27 March 2007, he heard a rocket incoming to his position.  He claims he barely had time to move and the blast propelled him.

3.  The applicant provides 14 exhibits identified on the index he provides with his application in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that on 30 November 2006, while serving as a member of the Army National Guard (ARNG) with the National Guard Bureau in Rapid City, South Dakota, he was deployed on a temporary change of station to Iraq in support of Operation Iraqi Freedom.

2.  The applicant’s DA Form 2-1 (Personnel Qualification Record) shows he served in Iraq on temporary duty for 5 months from 6 January 2007 through 28 May 2007.  

3.  The applicant’s official military personnel file is void of any orders or other documents that indicate the applicant was recommended for or awarded the CAB by proper authority while serving in Iraq.

4.  On 26 November 2008, a DA Form 4187 (Personnel Action) recommending the applicant be awarded the CAB based on his action during an enemy mortar attack in Iraq on 27 March 2007 was completed by the Chief of Staff of the South Dakota ARNG who recommended approval of the award.

5.  On 31 December 2008, the Chief, Military Awards Branch (MAB), Human Resources Command (HRC), returned the CAB request to the applicant without action.  This official indicated that the witness statements provided by the applicant were from individuals who did not personally witness the applicant during the rocket attack in question.  She further indicated that the incident report provided by the applicant did not actually indicate he was involved in the attack.  This HRC official further advised that the applicant could resubmit his request to HRC if he could provide two actual eyewitness statements and/or official documents that provide details on his location and proximity in meters from the blast.

6.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, MAB, HRC.  This official indicates the applicant was not awarded the CAB by the award approval authority in theater and that the MAB received a request for the award from the applicant in December 2008.  She further indicates that in addition to his own description of the events, the applicant also provided three witness statements from individuals, none of whom were actual eyewitnesses to the events described by the applicant, but who relayed information on the events as described to them by the applicant.  This official further indicated the applicant provided medical documentation that showed treatment for a bruised ring finger, sprained wrist, and lateral epicondylitis (tennis elbow).  These medical reports include the applicant’s own description of how he sustained the injuries.  Finally, a unit incident report was provided that did not mention the applicant’s involvement in the attack at all.  She concludes by indicating that the MAB returned the applicant’s CAB request without action for additional documentation that would corroborate the applicant’s description of the incident and his involvement in the action and, in the opinion of the MAB, there is still insufficient information provided to retroactively award the CAB to the applicant for actions in Iraq on 27 March 2007.

7.  On 1 May 2009, the applicant was provided a copy of the HRC advisory opinion in order to have an opportunity to reply and/or to rebut its contents.  To date, he has failed to respond.

8.  The applicant provides the same witness statements that were provided in the request submitted to the HRC MAB in December 2008 in support of his CAB request.  These statements all outline the events of an attack that took place in March 2007 in Iraq and support the applicant’s request to be awarded the CAB.  None of the individuals were actual eyewitnesses to the applicant’s actions or involvement during the attack.  He also provides the medical treatment records he provided to HRC, a photograph, and a news article on attacks in the Baghdad Green Zone.

9.  Army Regulation 600-8-22 (Military Awards) provides the Army’s awards policy.  Chapter 8 contains guidance on award of badges and tabs of United States origin.  Paragraph 8-8 provides guidance on award of the CAB.  It states, in pertinent part, that the CAB is awarded to provide special recognition to Soldiers who personally engage or are engaged by the enemy.  Specific eligibility requirements are that the Soldier must be performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized, the Soldier must be personally present and actively engaging or being engaged by the enemy, and performing satisfactorily in accordance with the prescribed rules of engagement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be awarded the CAB was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was not awarded the CAB by the proper award approval authority in the theater (Iraq) at the time of the incident in question; further, that his request for retroactive award was properly considered by the HRC MAB and was returned for further additional documentation corroborating the applicant’s involvement in the 27 March 2007 incident in Iraq.  There is no indication that the applicant provided additional information to HRC or that he provided additional information with his application to this Board.

3.  By regulation, in order to support award of the CAB, it is necessary to have evidence confirming that the member was personally present and actively engaging or being engaged by the enemy.  In this particular case, there are no eyewitnesses to corroborate the applicant’s actual level of involvement in the attack of 27 March 2007.  All the witness statements he provides are third-hand accounts of his actions.

4.  Further, the applicant being in the vicinity and/or sustaining injuries alone, without first-hand corroboration of how the injuries were received or of the level of involvement in the attack, does not corroborate that the member’s personal level of engagement satisfies the regulatory requirements for award of the CAB.  Absent evidence confirming that the award approval authority in theater supports the award of the CAB to the applicant or absent clear and convincing eyewitness accounts of the applicant’s involvement in the 27 March 2007 incident, there is an insufficient evidentiary basis for this Board to substitute its judgment for that of the HRC MAB officials who are properly delegated the authority to rule on retroactive awards of the CAB.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ____x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ____________x_____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090003104



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ABCMR Record of Proceedings (cont)                                         AR20090003104



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